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District Court of Appeal, First District, Division 1, California.


Civ. 10643.

Decided: January 28, 1938

Rittenhouse & Rittenhouse and Bert B. Snyder, all of Santa Cruz, for appellants. Wyckoff, Gardner & Parker, of Watsonville, for respondents.

The probate of the above–named estate being pending in the superior court of Santa Cruz county, Norman N. Blakely, Samuel Blakely, and Margaret Daly filed a petition under the provisions of section 1080 of the Probate Code for an order determining who are interested in said estate, in which they alleged that they are second cousins once removed of the deceased. A time for hearing the petition being set and notice thereof given, Rosina Luise Loder, Marie Elise Pauli, and Rosina Ponte appeared and filed a written statement, setting forth that each is a first cousin of the mother of the deceased and a first cousin once removed of the deceased, and denying the interest of the petitioners. At the hearing both sets of claimants introduced their proof in the form of affidavits made by genealogical experts, detailing the respective family trees of the parties; no objection being made to the form of the proof. It showed the petitioners to be related to the deceased through his father, and their opponents to be related to him through his mother. From the proof it also appeared that the maternal grandmother of the deceased was an illegitimate daughter of Elizabeth Suter, the common ancestor of the respondents and the deceased.

The court made findings of fact and conclusions of law, by which it found that Rosina Luise Loder, Marie Elise Pauli, and Rosina Ponte are first cousins of the mother of the deceased, their relationship to the deceased being in the fifth degree, and that the relationship of the Blakelys and Daly to him, if any relationship exists at all, is that of second cousins once removed and is in the eighth degree. As conclusions of law the court found that the estate of the deceased descended to claimants Loder, Pauli, and Ponte, who each is entitled to an undivided one–third share. Judgment was entered accordingly, in which it was further decreed that the claims of the Blakelys and Daly be denied. These have appealed from the judgment.

The opening brief of the appellants contains a “Statement of the question on appeal,” which, reduced to its simplest terms, is, Under the law of this state can a grandmother, of illegitimate birth and not legitimated, succeed to the estate of her grandson of legitimate birth who dies intestate, leaving neither issue, spouse, parent, brother, sister nor descendant of a brother or a sister? The appellants then specify that the trial court erred in its conclusions of law and judgment that the estate of said grandson descended to the respondents and rejecting the claim of appellants. They then proceed to argue that question on the assumption that the evidence establishes the illegitimate relationship. The respondents point out that this is an attack on the findings of fact without any specification that they are not supported by the evidence; and that appellants have also failed to comply with rule VIII, section 3, of the Supreme Court, permitting the substance of such parts of the typewritten record as are relied upon––and which are required by section 953a, Code of Civil Procedure, as amended by St.1937, p. 476, to be printed in the briefs––to be stated in substance with parenthetical references to the line and page of the typewritten transcript. For lack of such specification respondents urge that the appeal is not entitled to consideration and that the judgment should accordingly be affirmed; and for failure to comply with said rule VIII the appeal should be dismissed under section 4 thereof.

As to the latter it may be at once said that said section 4 has been amended since the taking of this appeal (effective November 4, 1937), as a consequence of which this court may no longer dismiss an appeal for such failure, but may order the omission to be supplied. The rectification has already been made by the appellants in their closing brief.

As to the former, the appellants represent that by reason of the course which the proceedings in the trial court took they were led to believe that the illegitimacy of the person in question had been practically stipulated as a fact and, that being so, they were justified in proceeding to argue the appeal on that assumption and show that the conclusions of law and judgment were erroneous. The transcript of proceedings does not sustain the suggestion that such a stipulation was made, but it discloses some excuse for the assumption.

It is further urged by the respondents that the appeal ought not to be entertained for the reason that there is no finding that the appellants are related to the deceased, and therefore they are not parties aggrieved who may appeal from the judgment. This situation has been met by the appellants by a specification of error made in the closing brief that the court failed to find upon that question, which was a material issue in the case. This relationship was also assumed by the appellants to have been agreed upon and they assert that the course of the proceeding at the trial misled them into taking that view.

This court will not, in all cases, enforce its rules; it retaining a certain discretion in exacting compliance with them, 2 Cal.Jur. 729; 1 Cal.Jur.Supp., 451. The respondents have not been misled nor, we think, prejudiced by the departure from them in this instance, as in their brief they have exhaustively and ably treated the question which the appellants purported to raise; nor has this court been inconvenienced by such departure. And, since the question attempted to be presented by the appeal is stated by the parties to be one which has not heretofore been decided in this state and to be an important one, we have concluded to consider the appeal upon its merits.

The first contention of the appellants, then, is that the undisputed evidence shows that Anna Maria Weyeneth, the maternal grandmother of the deceased, was the illegitimate daughter of Elizabeth Suter, the common ancestor of the decedent and the respondents, as the result of which illegitimacy the respondents cannot claim to be lawful next of kin of the deceased.

It is well settled that the right to succeed to the estate of a deceased person is not a natural right but one created and regulated by law, Estate of Watts, 179 Cal. 20, 175 P. 415, although it is true that its course of devolution is invariably confined to those of the blood of the decedent, to adopted children, or to the surviving spouse, and it will not escheat to the state so long as there is a person of that blood in existence to receive the estate.

It is conceded that our statutes relating to succession are founded upon the common law as it existed when that law was by statute adopted bodily into the law of this state in so far as it was suitable to existing conditions here; and it is also conceded that by that law an illegitimate person was without capacity to inherit and, consequently, to transmit the estate of one relative to another. He was said to have no heritable blood and his only heirs were those of his own body. The person or persons to whom the estate descends are described as the next of kin of the deceased, so that a person lacking capacity to inherit his estate is not his next of kin. Thus at common law the illegitimate grandmother involved in this case would not be capable of inheriting the estate of her legitimate grandson because not lawful next of kin, although he could inherit her estate by representing his father or mother, issue of her body. So that the question here involved is, By what statute of this state, if any, has this rule of the common law been changed?

The subject of succession is dealt with by a number of sections of the Probate Code. The first one pertinent to this inquiry is section 226, formerly part of section 1386 of the Civil Code. It provides: “If the decedent leaves neither issue, spouse, parent, brother, sister, nor descendant of a deceased brother or sister, the estate goes to the next of kin in equal degree, excepting that, when there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor must be preferred to those claiming through an ancestor more remote.”

It is seen that a grandparent is not designated specifically as entitled to succeed to the estate of a deceased person, but comes in under the provision that the estate goes “to the next of kin in equal degree.” The term “next of kin” as here used does not include a person not of legitimate birth. Estate of Magee, 63 Cal. 414, 416. To construe it otherwise would be quite inconsistent with section 255 of the same Code, which is in pari materia and deals specifically with the rights of inheritance of illegitimate children, and which is the next provision of our statutory law to be considered in connection with the question before us.

Section 255 of the Probate Code provides that: “Every illegitimate child is the heir of his mother, and also of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father; and inherits his or her estate, in whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock; but he does not represent his father or mother by inheriting any part of the estate of the parent's kindred, either lineal or collateral, unless, before his death, his parents shall have intermarried, and his father, after such marriage, acknowledges him as his child, or adopts him into his family; in which case such child is deemed legitimate for all purposes of succession.”

It is seen that this section contains two provisions, first, an affirmative one, enabling an illegitimate child to inherit the estate of his mother and, under the conditions there stated, the estate of his father, and a negative one (designed to rebut an inference that might be drawn from the first) to the effect that he does not represent his father or mother by inheriting any part of the estate of the parent's kindred, unless he shall have been legitimated by his parents.

This section obviously has no application to the case before us, for there is not here involved the estate of either of the parents of the illegitimate nor the estate of kindred of either which Anna Maria Weyeneth, even if legitimate, could have inherited by representation (succession by right of representation taking place when the “descendants of a deceased person take the same share or right in the estate of another that such deceased person would have taken as an heir if living)” Probate Code, § 250, since the estate here involved is that of a descendant and not of an ancestor or his collateral kindred. It therefore seems clear that the rights of succession of an illegitimate to the estate here involved are not affected in any respect by this section.

It is necessary to refer to a third section of the Probate Code, since an argument is based upon it that through its provisions the rights of succession of illegitimates are by implication enlarged. That section is 256, which reads: “The estate of an illegitimate child, who, having title to any estate not otherwise limited by marriage contract, dies without disposing thereof by will, is succeeded to as if he had been born in lawful wedlock, if he has been legitimated by a subsequent marriage of his parents or adopted by his father as provided by the Civil Code; otherwise, it is succeeded to as if he had been born in lawful wedlock and had survived his father and all persons related to him only through his father.”

Here we have a change in the common–law rule of succession by giving to the parents of an illegitimate child and to their kin, if he has been legitimated, and to the mother and her kindred alone if he has not been, the right to succeed to his estate as if he had been born in lawful wedlock; but the change is limited by the terms of the section to the estate of an illegitimate, with which, as before remarked, we are not here concerned.

In seeking to uphold the judgment, the respondents do not contend that there has been any specific change by statute of the common–law rule denying to an illegitimate the right to succeed to the estate of her legitimate grandchild, but that this result necessarily follows from section 256, arguing that if the estate of the illegitimate under the conditions there stated is succeeded to in the same manner as that of a legitimate child, he has thereby been given “heritable blood” for all purposes and, like a person born in lawful wedlock, can receive the estate of a grandchild and transmit it to his ancestors.

We are unable to agree with the arguments made by respondents in this behalf. Under section 256 an illegitimate child has been given capacity to pass his own estate to maternal and paternal ancestors, according to circumstances, and, under 255 to receive, under the indicated conditions, the estate of his ancestors; and having at all times under the common law the capacity to pass his own estate to the heirs of his body, is now capable of transmitting to these such ancestral estate; but he has by no statute been given capacity to inherit the estate of his legitimate offspring or of their descendants. If he cannot take it he cannot transmit it. No more in law than in physics is it possible to transmit something that has not been or cannot be received. The effect of sections 255 and 256 is to remove part of an illegitimate's incapacity. To remove part leaves the remainder unaffected.

In advancing their argument the respondents urge that the incapacity of an illegitimate to inherit was the effect of his having no heritable blood. We find this statement repeatedly made. This is a confusion of thought. The lack of heritable blood and the incapacity to inherit are not cause and effect, but both terms describe a condition attached by law to illegitimacy; and to say that a person has no heritable blood is but a figurative way of saying that he is incapable of inheriting. They are both the effect of the same cause, namely, illegitimacy. And it must also be apparent that that figurative expression refers to no inherent quality of the blood, since two children of the same parents, one born out of wedlock and not legitimated by the subsequent marriage of his parents and being received into the family of his father, and the other born in wedlock, have of course physically precisely the same blood, but the former had at common law no capacity to inherit and the latter had full capacity, or, to express it figuratively, the former had no heritable blood and the latter had.

The respondents point out that section 256 does not contain the clause, “but he does not represent his father or mother by inheriting any part of the estate of the parent's kindred, either lineal or collateral,” etc., which forms part of section 255, and argue therefrom that by section 256 it was intended that he should have capacity to succeed to the estate of his descendants.

As we have already indicated, the right to inherit by representation applies only to the estate of an ancestor or ancestor's kindred, and necessarily so since only with reference to such an estate does a child represent his parent.

These views are in accord with the decisions in Hardesty v. Mitchell, 302 Ill. 369, 134 N.E. 745, 24 A.L.R. 565; Sanford v. Marsh, 180 Mass. 210, 62 N.E. 268, and Curtis v. Hewins, 11 Metc., Mass., 294, rendered under statutes similar to those here considered.

We are not unmindful of the fact that the rule, that statutes in derogation of the common law should be strictly construed, does not prevail in this state, but that such statutes are to be liberally interpreted in order to effectuate their intent; but even the most liberal interpretation would not enable us to reach the conclusion urged by the respondents, and we are confident that the intent of the statutes considered is as herein declared.

As a further reason for construing the statutes in question with the greatest liberality the respondents argue that they were enacted with a view to removing what they term the barbarity of the common law in its treatment of illegitimates. We cannot agree with this view. The stigma attached to illegitimacy was not so much incapacity to inherit the estate of relatives as the humiliating attitude adopted towards persons born out of wedlock. What of those restrictions remain are in the interest of morality, as they all were designed to be, the propriety of protecting which is just as great today as ever.

It follows from what we have said that the contention of appellants that the respondents are not lawful next of kin of the deceased––the evidence being uncontradicted that Anna Maria Weyeneth was illegitimate––must be sustained and the judgment reversed.

This leaves for consideration the point that the court erred in making no finding of fact on the question of kinship of the appellants to the deceased, that being one of the material issues presented. The finding in that behalf, it will be remembered, was that the relationship of each of them to the deceased, “if any,” is that of second cousin once removed, a relationship in the eighth degree. This, of course, is not a finding that any relationship in fact existed, nor is it a finding that no relationship existed. The issue having been presented and being material, the court should have made a finding upon it.

For the foregoing reasons the judgment is reversed and the cause remanded to the superior court for the purpose of making a finding upon the question of appellants' relationship to the deceased, and to enter judgment according to the finding so to be made. It is further ordered that the costs of appeal be paid out of the assets of the estate. Probate Code, § 1232.


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